Summary
denying injunction to restore phone privileges where inmate did not allege that alternate means of communication were inadequate
Summary of this case from McIntosh v. United StatesOpinion
No. 00 Civ. 5719 (RCC) (KNF).
March 9, 2001.
OPINION AND ORDER
Petitioner, an inmate at the Otisville Federal Correctional Institution, filed a motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on August 2, 2000, alleging that prison officials improperly revoked his telephone and visitor privileges as punishment for a number of disciplinary infractions. Approximately three weeks thereafter, Petitioner brought the instant motion by order to show cause for a temporary restraining order and preliminary injunction permitting him to make phone calls to his immediate family and to receive them as visitors during the pendency of this action. For the reasons set forth below, the Court denies Petitioner's motion for the requested preliminary relief and refers Petitioner's motion for a writ of habeas corpus to Magistrate Judge Fox for a decision on the merits.
On August 18, 2000, the Court ordered that this case be assigned to a Magistrate Judge for a Report and Recommendation as to the habeas corpus petition.
I. BACKGROUND
Petitioner, while a detainee at the Metropolitan Correctional Center ("MCC"), placed a three-way telephone call in contravention of MCC regulations. The regulations specifically provide that:
Inmate telephones for collect calls are subject to monitoring. Calls are limited to ten minutes. Third party calls, credit card calls, use of total phone, or call forwarding is prohibited . . . Violation of these regulations will result in loss of your telephone privileges.
Declaration of Rosalind Bingham ("Bingham Decl.") dated October 16, 2000, Ex. A at 18 (emphasis in original). Petitioner was cited for Code 406 (Unauthorized Use of the Mail or Telephone) and appeared before a Disciplinary Hearing Officer on February 20, 1999. Petitioner was found guilty and his telephone, visitor and commissary privileges were suspended for 90 days.
Petitioner had received a Bureau of Prisons ("BOP") Admission and Orientation booklet containing the above rule upon his arrival at the MCC.
While the sanctions were still in place, Petitioner allegedly attempted to have another inmate make a telephone call on his behalf. Petitioner received another incident report for Codes 406 (Unauthorized Use of the Mail or Telephone) and 307 (Refusing to Obey an Order). On July 27, 1999, Petitioner was sentenced to 10 days loss of good time conduct, 15 days in disciplinary segregation and a further one-year restriction on his telephone, visitation and commissary privileges. In his habeas petition, Petitioner challenges the loss of his privileges on the basis that the Disciplinary Hearing Officer refused his request to call witnesses at the hearing and made false statements in the report. Petitioner claims that in fact he was merely holding the phone for the other inmate.
A few weeks later, Petitioner received a third incident report for Codes 406 and 307 on the grounds that Petitioner again attempted to have another inmate place a call on his behalf. According to Petitioner, the inmate contacted Petitioner's common-law wife for him in order to inform her of Petitioner's well-being. In addition to other sanctions, Petitioner's telephone, visitation and commissary privileges were suspended for one year to run consecutively with his prior sentence.
Petitioner then was transferred from the MCC to the Otisville facility pending sentencing. While at Otisville, Petitioner received his fourth incident report for a Code 406 violation. At that time, Petitioner was prohibited from using the telephone and the commissary, and from receiving visitors, for a further five-year term. Petitioner appealed the determination to the BOP's Northeast Regional Office and then to its Central Office. Both appeals were denied. See Bingham Decl. ¶ 18. A few months thereafter, Petitioner sent a request to Otisville officials asking that his privileges be restored. Although the request initially was denied, on August 23, 2000, Respondent reinstated Petitioner's visitation and commissary privileges but did not permit telephone use.See id. at ¶ 21. Since that date, various family members have visited Petitioner on at least seven separate occasions. See id. at ¶ 24.
With respect to the instant motion, Petitioner seeks a temporary restraining order and preliminary injunction allowing him to have visitation and phone contact with his immediate family members during the pendency of this action, and seeks such further relief as the Court deems appropriate. Upon Petitioner's application, this Court issued an order to show cause filed on August 24, 2000, and directed that the Clerk of the Court serve Respondent accordingly. Respondent opposes the motion on the grounds that Petitioner has not demonstrated the requisite irreparable harm and likelihood of success on the merits, particularly as his visitation rights have been reinstated. The Court agrees with Respondent that interim injunctive relief is not warranted here.
Petitioner requested an extension until November 30, 2000, to reply to Respondent's opposition memorandum. To date, Petitioner has not filed any reply papers. This Court will accord Petitioner an additional 30 days from the date of this Order in which to file a reply brief in support of his habeas petition.
II DISCUSSION
Preliminary injunctive relief is generally appropriate only upon a showing of (a) irreparable harm in the absence of an injunction and (b) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor. Tom Doherty Assoc. v. Saban, Entertainment, Inc., 60 F.3d 27, 33 (2d Cir. 1995) (citing cases). A higher standard applies where, as here, the relief sought by the movant will alter the status quo. See id. at 34;Muze, Inc. v. Digital On-Demand, Inc., 123 F. Supp.2d 118, 126 (S.D.N.Y. 2000). In such a case, an injunction should issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Tom Doherty, 60 F.3d at 34 (citation omitted).
The "standards which govern consideration of an application for a temporary restraining order . . . are the same standards as those which govern a preliminary injunction." Local 1814, Int'l Longshoremen's Ass'n v. N.Y. Shipping Ass'n. Inc., 965 F.2d 1224, 1228 (2d Cir. 1992).
Because the Court finds that Petitioner has not made a sufficient showing of irreparable harm, no interim injunctive relief can be awarded. See Reuters Ltd. v. United Press Int'l, 903 F.2d 904, 907 (2d Cir. 1990) ("Because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.") (citations omitted). Petitioner argues that his mother, who is in poor health, is planning to come to New York from the Dominican Republic "because she does not know if she will ever see her son again as a free man. . . ." Declaration of Victor Paulino ("Paulino Decl.") dated July 18, 2000, at ¶ 5. Petitioner also seeks visitation privileges with other family members, arguing that his three children who reside in New York are in need of their father's guidance.Id. at ¶ 6. However, because Petitioner's visitation privileges have been restored, Petitioner can — and has — commenced visits with his family members. See Bingham Decl. at ¶ 24. Thus, the requested relief is moot.
Petitioner also argues for reinstatement of his telephone privileges so that he can contact his children who reside in the Dominican Republic.See Paulino Decl. at ¶ 7. However, Petitioner has alternate means of communication available to him — such as letter-writing and sending messages through other visiting family members — that militate against imposing interim injunctive relief. See, e.g., Pitsley v. Ricks, No. 96-CV-0372, 2000 WL 362023, at *5 (N.D.N.Y. Mar. 31, 2000) (dismissing prisoner's section 1983 suit alleging improper denial of telephone access where inmate had alternate means of communication with the outside world by mail); Acosta v. Bradley, No. Civ. A. 96-2874, 1999 WL 158471, at *7 (E.D. Pa. Mar. 22, 1999) (same); cf. Arbitron Corp. v. Phoenix Broadcasting Corp., No. 97 Civ. 4355, 1997 WL 452020, at *5 (S.D.N.Y. Aug. 6, 1997) (declining to issue preliminary injunction where movant offered no explanation why alternatives would not ameliorate or eliminate the irreparable harm). Petitioner has made no argument that these alternate avenues of communication are inadequate, and has proffered only conclusory allegations regarding his communication with his children in the Dominican Republic. See Reuters Ltd., 903 F.2d at 907 (holding that irreparable harm must be "imminent"). Because Petitioner has not demonstrated that communication with his family members has been impaired such that irreparable harm will occur, a preliminary injunction altering the status quo is not warranted at this time.
III. CONCLUSION
For the foregoing reasons, Petitioner's motion for a temporary restraining order and preliminary injunction, and for unspecified further relief, is denied. As no further motions are pending, the petition for habeas corpus is referred to Magistrate Judge Fox for a determination on the merits, and Petitioner may take an additional 30 days from the date of this Order in which to file a reply brief in support of his habeas petition.